South African Criminal Law Procedure and Examples
- Featured article by LAWYERS-ONLINE.CO.ZA - June 2019
Criminal law and procedure is an incredibly vast topic when it comes to discussing South African law, or any other country’s laws for that matter. We draw from so many sources, that the criminal law system in South Africa is a hybrid of Roman law, English law, legislation, common law and case law.
Some crimes can be found in common law, while other crimes are codified by their own piece of legislation such as The Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007. So instead of looking at each individual crime, let’s instead take a look at Criminal Law Procedure, to best understand how the South African legal system deals with crimes and the prosecution thereof. Therefore we are going to be looking at the procedural law side of criminal law, which draws a huge influence from English Law – which is mainly an accusatorial system where the state accuses and the accused defends. Under South African criminal law, in order to be found guilty, the state must be able to prove their case beyond a reasonable doubt – which means there should be no way that the accused can cast any doubt on the circumstances of the accusation.
For example, should the state accuse a person of murder, but it is proven that they lack the strength to wield the murder weapon, there is reasonable doubt and they cannot be found guilty.
So aside from English law, are there statutes that South Africa draws upon for criminal procedure? Yes, as always the supreme law of the land, The Constitution of the Republic of South Africa 108 of 1996 has an influence, followed by the Criminal Procedure Act 51 of 1977 and other statutes like the Supreme Court Act and Magistrates Act. Many other statutes also have a small influence, but when it comes to the actual procedural rules to follow, these are the primary legislative sources. It should also be noted that since its inception, the Child Justice Act 75 of 2008, there have been significant changes to the act regarding minors in order to protect them.
If we are to look at criminal law as a procedure and process, it is easier to discuss it under the three main stages of the process:
This is when the accused is investigated and subsequently arrested and charged if there is enough proof. During this part of the criminal law procedure, the accused may apply for bail, seek legal representation and prepare their defence for their trial.
A prosecutor may combine a number of charges in the same proceedings, and these are numbered as counts – for example, count 1 and count 2.
For example, should someone be arrested and charged for automotive theft, this is where the prosecutor will bring the charges against the accused, and the accused and their legal representation will then ensure that they are able to investigate the evidence and provide an adequate rebuttal for it.
An accused may also avoid the trial stage of the criminal law process if they enter a plea of guilty and move straight into the post-trial stage of sentencing.
The trial is the most interesting aspect of criminal procedure and the one that everyone pays the most attention to. This is where the accusatorial nature of our criminal law system truly comes to life.
The state will present their case in a court of law and the defence will counter or bring their own evidence. Thereafter, a judge will make a determination of guilt based on these arguments and ultimately lay down a verdict.
Fascinatingly, the charges may also be amended during the trial if the grounds for it exist – for example, the evidence points to another type of offence than the one the accused has been charged with.
Post-trial is equally as fascinating as there are many things to tie up pending a verdict. For example, if someone found guilty, there will be a separate hearing to determine their sentence.
Although this is just a quick snapshot of the intricacies of criminal law procedure as it pertains to court cases, it is amazing to see how one aspect seamlessly flows into another.
Other Aspects Covered by Criminal Law Procedure:
Although it would be impossible to cover everything covered by criminal law procedure, let’s take a look at a few examples below:
Criminal procedure in South Africa makes provision for the process of appeals and reviews, which allows for verdicts to be overturned in a higher court. Therefore if someone is unhappy with the outcome of a trial, they have the right to challenge that.
Bail works The Constitution to guarantee to the freedom of people in South Africa, and therefore when a person is arrested they should be afforded the chance to be let out on bail while their trial is pending.
If you find yourself curious about criminal law procedures, please feel free to contact us and we can refer you to a criminal attorney who will be able to assist.